Tuesday, December 09, 2014

Why Can't We Talk About Abortion?

Many controversial issues divide Americans, such as how health care should be handled, the appropriate relationship between church and state, and the validity of affirmative action. Although these questions trigger strong views, public debate is often (or at least at times) respectful and bracketed by an awareness on the part of most people that some compromise is likely necessary.

The same simply can’t be said about abortion. Those who believe that terminating a pregnancy is the moral equivalent of murder often characterize those in favor of that right as anti-life, anti-baby, and even anti-God. Those who think women should have the right to decide for themselves whether to carry a fetus to term often characterize those opposed as anti-women, anti-sex, and anti-choice. The rhetoric on both sides is often extreme with hyperbolic charges hurled in both directions.

Listening to the warring sides suggests that nothing short of a complete prohibition on all abortions or a total ban on any regulation of abortions would satisfy either side. It is an all or nothing, zero-sum game, with little respect paid to the other side’s position.

Legally, the abortion wars are playing out in legislatures and courts all over the country to virtually no one’s satisfaction. The divide negatively impacts judicial confirmation hearings, local and federal elections, and even legislative responses to women’s health issues not directly connected to the abortion debate, such as contraception.

How come we can’t talk about abortion without name calling and invective? Is it because the issue involves religion, sex, and core notions of morality? Maybe, but the recent same-sex marriage debate presents similar issues and, even though tempers flare, the rhetoric is not the same and compromises are frequently discussed by both sides (e.g., civil unions).

Is it because there can be no compromise if one believes abortion amounts to the killing of another human life? Maybe, but the reality is that our country does not have a blanket ban on the taking of human life. We allow people to end the lives of others when doing so is necessary for self-defense, when our country is at war, and by allowing the death penalty. Moreover, many people opposed to abortion still think it is permissible when rape or incest caused the pregnancy or when continuing the pregnancy threatens the life of the mother. Our societal consensus about the immorality of taking life is by no means an absolute rule with no exceptions.

Is the debate so intense because it is intertwined with the proper role of the Supreme Court in our society? There are many people, including this author, who passionately believe women should have the right to terminate their pregnancies and would vote that way but also believe it was improper for the Court to take the issue away from the states.

The likely answer is that the debate is so intense and the warring sides so extreme for all of the above reasons and perhaps many more. But we will never make progress towards a solution until both sides make good faith efforts to understand, and even have empathy for, the other side’s arguments. It may be difficult but it has to be worth the try.

Here are a few observations about the abortion debate that hopefully most people can accept and might lead to a more helpful dialogue.

First, we should avoid using misleading labels to identify the two opposing positions. No one thinks that murder (if it is really murder) is a legitimate “choice” or that women have the right to end an innocent human life. No one is really against “choice” or “life.” Thus “pro-choice” and “pro-life” name tags are not helpful.

Second, just about everyone would prefer a world with far fewer abortions. If we could prevent unintended pregnancies and do away with complications arising from unhealthy pregnancies, we would all agree the world would be a better place. Planned Parenthood and other women’s organizations would like nothing more than to use all their resources to diagnose and prevent cancer, sexually transmitted diseases, and other threats to women’s health. It may be a cliché but it is true: people are not pro-abortion, just pro-women having the freedom to have abortions. Those two positions are not the same.

Third, those in favor of the right of women to terminate their pregnancies must take seriously and respect at face value the position of people who think that abortion involves the wrongful taking of a human life. Labelling fetuses “a collection of cells” is not helpful. When human life actually begins for legal or constitutional purposes is a metaphysical question with no right or wrong answer. It is an issue of preference not science or logic.

Fourth, abortion is not just another medical procedure. For better or for worse, millions of Americans believe there is a moral component to the decision to terminate a pregnancy which does not exist in other health issues. Ignoring that moral component does not advance the discussion.

Fifth, our history and the experiences of women in other countries confirm that abortions will take place regardless of whether they are legal or illegal. Although that reality is relevant to the debate, it does not end the debate. We have laws against many behaviors (prostitution, gambling, speeding) that we know are routinely violated but that does not logically entail the conclusion those behaviors should be deemed legal. On the other hand, if abortions are inevitable, regardless of law, shouldn’t they be as safe as possible?

Sixth, a new round of state laws and resulting litigation will likely lead to a return of the issue of abortion to the Supreme Court. But, no good answer will come from the Justices.

If the Court were to strongly affirm the right of women to terminate their pregnancies, such a decision would likely further energize the pro-life movement and lead to different anti-abortion laws, more intense politicization of the issue, and maybe even civil disobedience. Similarly, if the Court were to go in the opposite direction and allow states to prohibit abortions and states did exactly that, women’s rights groups would forcefully mobilize and engage in expensive lobbying and perhaps even their own civil disobedience. In either case, the debate is not going away.

Both sides would benefit from accepting these observations because the reality is that neither side is going to achieve total victory. It is unlikely that abortion will ever be totally unregulated or totally prohibited. That is not a moral observation just a cold, hard fact.

In light of this great divide, perhaps even those who believe strongly that women should be allowed to terminate their pregnancies might need to accept reasonable and effective governmental regulation of a choice seen as so immoral by so many, while even those who passionately oppose abortion might need to accept that other methods of preventing abortions other than governmental coercion may be effective in deterring abortions and more respectful of those who want to allow women to make the choice themselves.

There may well be other ways to handle such a difficult societal dilemma. But we will never know until we at least try to talk with one another instead of at one another. And, even if it turns out that compromise is impossible, shouldn’t we at least try?

32 comments:

For what it’s worth, I disagree with Professor Segall on a number of propositions in this post, including the claim that Roe was wrongly decided (although I think it was a hard case as an original matter). I also would quibble with the following statement: "When human life actually begins for legal or constitutional purposes is a metaphysical question with no right or wrong answer. It is an issue of preference not science or logic.” I would say that calling views about such matters “preferences” flirts with moral relativism. In addition, as indicated by yesterday’s post, I don’t think the status of “human,” as opposed to “sentient,” should be critical here. That point is central to the forthcoming book by Professor Colb and myself, Beating Hearts: Abortion and Animal Rights. In it, we try very hard to do what Professor Segall urges here, which is to take all sides in the abortion debate seriously.

I think there is a great deal wrong with Prof. Segall's blog post - some, but not all, of which can likely be attributed to it being a blog post rather than a more lengthy discussion.

Mike took on one and I'll both adopt his critique and add my own. "When human life actually begins" is most certainly not a "preference" - other than by defining "life" to mean something it does not mean. It is actually not even properly formulated because "life" is not really what anyone means when they ask that question. My DNA, for example, removed from my body and maintained in a supportive solution is both very clearly life and human. But that is not what anyone means by that question. What they mean is one of two things:

1. For the rational, it means individuality or sentience.

2. For the irrational (e.g. those who believe that magic is real), it means the implantation of a soul, or some equivalence.

Science most certainly can answer the first one (though it does not currently have an undisputed best answer). Of course science cannot answer the second formulation because that is just gobbltygook and you may as well be asking how heavy blue is.

Asking for these to viewpoints to "respect" each other is absurd. I can no more "respect" the opinion of someone who wants to tell me abortion is always immoral because it prevents the release of a soul into this world than I can the opinion of a man with a different insanity who wants to convince me that wearing black is always immoral because the world is protected by invisible snakes, and wearing black causes them immense pain.

The second thing I want to address is "For better or for worse, millions of Americans believe there is a moral component to the decision to terminate a pregnancy which does not exist in other health issues. Ignoring that moral component does not advance the discussion." But of course that is wrong and has been wrong in every relevant rights issue in the past.

"For better or for worse, millions of Americans believe there is a moral component to the decision to marry a black person which does not exist in other marriage issues. Ignoring that moral component does not advance the discussion."

"For better or for worse, millions of Americans believe there is a moral component to the decision to hire a homosexual as a teacher which does not exist in other hiring issues. Ignoring that moral component does not advance the discussion."

I could go on and on and on. Yes, religious people are insane. Yes, that insanity often causes problems for the rest of us because usually those religious people don't, in fact, want to keep their views to themselves but instead want to live in a country where their insanity is recognized as law. In other cases (most, I would suggest) that religious view is nothing other than a cover for out-group exclusion to some privileged. And yes, these insane people are numerous and politically powerful.

There is, however, no reason to engage. Engagement, I would suggest, is positively harmful, in both the short and long term. You cannot "convince" someone that what their God says is wrong. So giving "respect" and seeking a "middle ground" is pointless in the long run because it will only shift the fight.

Lastly, I want to look at one line and remove the euphemisms. "If the Court were to strongly affirm the right of women to terminate their pregnancies, such a decision would likely further energize the pro-life movement and lead to different anti-abortion laws, more intense politicization of the issue, and maybe even civil disobedience. Similarly, if the Court were to go in the opposite direction and allow states to prohibit abortions and states did exactly that, women’s rights groups would forcefully mobilize and engage in expensive lobbying and perhaps even their own civil disobedience."

Let's not pretend the use of the term "civil disobedience" means the same thing in those two sentences. Pro-choice activists will protest. At the outside there is at most some property damage either intentional or incidental to the protests. "Civil Disobedience" from "pro-Life" protesters occasionally means they kill people.

No, "respect" is most certainly not the path to meaningful dialog in this case.

Thanks to Mike for allowing me to post this piece. I do strongly disagree with his moral relativism point. What I wrote was: "When human life actually begins for legal or constitutional purposes is a metaphysical question with no right or wrong answer. It is an issue of preference not science or logic." The key part of the sentence is "for legal or constitutional purposes." What rights a fetus should have or not have for legal or constitutional purposes is certainly a question upon which reasonable people can differ and upon which there is no "right" legal answer. No text, case, or theory can solve the problem. One can be a "legal relativist" without flirting with moral relativism's most extreme claims.

Paul I understand your perspective and for a long time shared it (I met my wife through planned parenthood,I volunteer for planned parenthood, and I am pro-choice all the way down). But, there is always something to be gained by demonstrating empathy for people with whom we disagree and, on this issue, an attempt to compromise can hardly make matters worse than they currently are (a country where the rich have easy access to abortions and the poor difficult or almost no access). Talking to each other instead of at each other may be the most sensible policy (especially for those of us South of the Mason-Dixon line). All out war is one we will lose.

Prof. Segall,Is there a relevant amoral consideration "for legal or constitutional purposes" to "when life begins?"

In fact, when you even ask the question "when does life begin?" in the context of "legal or constitutional purposes" are not you conflating law and morality? (I mean that narrowly in this context, not generally).

I guess what I am asking is can you formulate an amoral argument where they key question is "when does life begin" that is relevant to the legal question of abortion and that is not better served by replacing the word "life" with a word such as "suffering" or "sentience?"

First, we should avoid using misleading labels to identify the two opposing positions. No one thinks that murder (if it is really murder) is a legitimate “choice” or that women have the right to end an innocent human life. No one is really against “choice” or “life.” Thus “pro-choice” and “pro-life” name tags are not helpful.

I think terminology can be a problem, but well, wait.

The problem here is that people define things differently. It doesn't quite do to say "well, I don't believe in 'x' but we aren't talking about 'x' here" if the person is defining "x" in a bad way. Denying something doesn't make it not so.

Some people think abortion is "murder" -- the illicit destruction of protected life. If they are correct, allowing abortion is "murder." The use of words like "holocaust" might offend and not have perspective, but if they are right, just because that event was LEGAL didn't make it not "murder."

Again, I understand, I believe, the concern. "Murder" has a meaning. It bothers me, e.g., how people to me blithely use it regarding drone strikes. If authorized killing pursuant to force authorized by Congress etc. is "murder," the term loses some meaning to me personally.

More particularly, people are against "choice." Some people, e.g., are more communitarian about things, and think "choice" is not as important of a good than other people. I realize again the term can mislead, but if conservatives, e.g., want to argue that certain roles make abortion or sodomy something we can make illegal, in some core fashion they are against "choice."

The complicated nature of these questions underline why this subject is very hard to discuss in various ways.

Paul, I not sure what you mean by amoral considerations but I think there are many "practical" issues that are quite relevant. Here are two: 1) abortions will occur anyway, better in clinics than back alleys, even if one thinks abortions should be illegal as a moral matter, prudentially it is too costly. In other words, abortions will happen whatever the law says so we just need to make them safe. 2) Whatever one thinks about when "life" or "suffering" begins, a true libertarian might say that as a group we are conflicted over the issue so the gov't should not coerce the decision.

2. For the irrational (e.g. those who believe that magic is real), it means the implantation of a soul, or some equivalence.

I really don't find this overly helpful. The idea of a soul has ancient roots, philosophical and otherwise. The term "magic" is overly dismissive in a way that demeans one side unnecessarily.

I think the meaning of the word "life" is very important here. The biological fact that we start from a fertilized egg is not enough to determine the "life" as expressed let's say in the Due Process Clause means that.

Consider, e.g., this statement from Levy v. LA (1968):

We start from the premise that illegitimate children are not "nonpersons." They are humans, live, and have their being. They are clearly "persons" within the meaning of the Equal Protection Clause of the Fourteenth Amendment.

What is this "being" that matters? A key question. Justice Clark dealt with this question in an influential abortion article cited by various opinions.

Mr. Segal mentions but does not sufficiently emphasize the role of family planning and preventing unwanted pregnancies plays in the debate over abortion. Non therapeutic abortions are solely the result of an unwanted pregnancy. Eliminate unwanted pregnancies and you eliminate discretionary abortions. The pro abortion rights side largely recognizes this, the anti-abortion rights side largely does not.

The problem with the anti-abortion rights side and the reason that they are so difficult to engage in a serious and thoughtful manner is that many of them, probably a large majority regard sexual relations for purposes other than procreation, particularly among unmarried individuals as morally wrong. So they see an unwanted pregnancy as the ‘punishment’ for such behavior and view any emphasis on family planning to prevent unwanted pregnancy as an attack on morality.

There are also those who believe as a matter of religion that contraception is morally wrong. These individuals are entitled to that belief, but they must recognize that there are degrees of immorality, and that to equate contraception with abortion is indefensible, and it is offensive to all of us who would reduce abortions by encouraging and promoting contraception. But mostly it is counter productive.

The point, millions of abortions could be prevented if the anti-abortion rights side would work effectively to educate and promote the use of contraception, and that those who oppose contraception on the basis that it is immoral or that it reduces punishment of sexual behavior with which they disagree are the major contributors to the incidence of abortions. It is not Planned Parenthood that is the problem, it is those who opposed Planned Parenthood and other supporting family planning that are to blame for the level of abortions that take place each year.

And yes, it is hard to be civil and tolerant to those people whose very actions, whose feelings of moral superiority and whose unwillingness to compromise on contraception to reduce unwanted pregnancies cause abortions which could otherwise be prevented.

First, the "point at which life begins" is metaphysical, but key. This is part of the problem. It's potentially a law that turns on an unanswerable question.

If life begins at first breath, then abortion isn't even taking a life and anybody who objects is just silly. Of course, very few even on the pro-choice side take this extreme view. Most believe life begins somewhere in the middle. The current Supreme Court compromise that life begins at the point where the child can survive outside the mother's womb actually seems like a reasonable one.

If life begins at conception, I'm not sure that the assumption that this automatically makes abortion murder is actually true. I've never seen anyone talk about what I consider to be the most relevant area of law that relates to abortion, which is law governing conjoined twins. What rights do or should conjoined twins have? What if only one of the twins is conscious? It may be that most of the questions here can be likened to already settled areas of law where these issues can be considered without the controversy surrounding abortion.

I suspect most pro-choice people actually already occupy a middle ground with respect to abortion, but current law in many states is moving beyond the middle ground into the area that is truly scary for even those who believe there is a middle ground to be had. Does using contraception that prevents implantation really constitute abortion? Are we really setting the bar so early that if something horrific is found at the standard 20-week ulrasound that an abortion in response would be illegal? Should states really be mandating procedures be performed in a way that does not reflect current medical practice because they don't like that people are having the procedure done at all? All of these are happening or being proposed, and go way beyond any sort of middle ground.

Another problem with the debate is that this is an area with one law for the rich and another for the poor. Rich people can afford to fly to another state if they need an abortion, this just (marginally) increases the cost. Poor people can barely afford to get to the clinic across town. I think this affects the debate because the powerful people arguing to outlaw abortion know full well that any such law will never really apply to them. I would move to another state if I didn't know that I have enough money to buy plane tickets should the need arise.

Going even further into the political realm, I think both sides benefit from the abortion debate. It gets people fired up and gets them to the polls to vote for their preferred side or (perhaps more often) against the other side. The politicians don't benefit from this becoming a settled area where people respect the position of their opponent.

As a side note, it's interesting that you bring up laws against "prostitution, gambling, and speeding" as laws that are routinely violated. Society clearly benefits from laws against speeding because they are "mostly" followed. Laws against gambling and prostitution are less clear, as they make participating in these activities significantly more risky, while (at least in the case of prostitution) not obviously making them less common. Abortion falls in this same area of increased risk, but is currently legal rather than illegal.

I may be echoing Mr. Ricardo's and Greg's comments, with which I wholeheartedly agree.

"Listening to the warring sides suggests that nothing short of a complete prohibition on all abortions or a total ban on any regulation of abortions would satisfy either side."

I think sentence is the failure of this post all wrapped up nicely. It seems to me to simply be factually inaccurate.

I have never heard of any mainstream politicians argue for no restrictions on abortion. There may be people who truly believe that life begins at first breath, but they simply do not appear in our political discussions. There may be people who believe that abortions should be available at the local corner store, and not need to be performed by doctors; I have never heard of these people. They are fringe.

On the other hand, substantial members of Congress believe and state on the record that abortions should be illegal in all times and all places, regardless of health or any other considerations. Republican dominated state legislatures are routinely passing laws requiring unnecessary ultrasounds, requiring local hospital admission privileges--knowing full well that the doctors will not be able to get such privileges--attempting to outlaw abortion after six weeks, and otherwise passing all manner of outlandish regulations. We have Supreme Court arguments by major retail chains arguing that some contraception is actually abortion.

Arguing that the two sides are somehow reflections of one another, and we could really make progress if we could all just get along is not only naive, but is harmful, because it legitimizes the most extreme voices. Republicans have been moving to the right on this, and many other issues in recent years; to present the two sides as equally unreasonable after such movement is to implicitly say to extremists that no matter how extreme they become, they will only get 50% of the blame. So they are then covered to continue to move even farther outside of the mainstream.

Any commentary that refuses to recognize the realities of where truculence is coming from harms more than it elucidates.

Then you have already lost and the only debate is the terms of your surrender. If you believe an all out war is one you will lose, and the pro-lifers know that, then they have no incentive to compromise--indeed, they have a strong incentive to make the war as big as possible precisely because they know they can bring superior force.

I agree. Moreover, I'd argue that the fear by the pro-lifers that they will lose an all out war is one of the main things that has prevented them from killing even more.

So either Eric Seagall's statement is grossly irresponsible as a strategic matter because it will directly lead to the loss of more human life or a vapid plea for mercy from pro-lifers that intend to show none.

I am receiving much criticism from those who believe women should have the right to have abortions (I believe that too). As a practical matter, we are losing the battle. In many states there are just a few clinics or doctors who will perform abortions, and for the poor, obtaining an abortion can be a herculean task. Even if abortions were illegal, the rich would still find a way. We need a new strategy and maybe the way to begin is to first deeply understand the other side's position. That is the only real point of this essay other than displaying respect for others is rarely a bad thing, in the end

Why can't We talk about abortion? Are You kidding Me? We can't even talk about race in America and simply being black, white, brown, asian, etc., has never been claimed to kill another Person. If We can't even talk about race in America, there is no way Americans are going to feel comfortable discussing when the law may start protecting a Life. AT THE SAME TIME, America probably needs to talk about both, whether Americans feel comfortable or not.

It seems to me that in the main, professor Segall is staking out a reasonable approach.

My experience is that there is a vast mainstream swath that does NOT see the matter in black and white terms. I have had many conversations (in the Atlanta burbs) where a father will say, "I am pro-life in a general way, but I'm uneasy with the idea that my daughter wouldn't have that choice."

For average Americans, I think there is a palpable tension between dual desires: valuing "life" and keeping government away from intimate spheres. That doesn't seem to be an unreasonable take on the crux. I guess the corollary to my rambling is that perhaps the issue isn't quite as divisive as it's made out to be, when we apply an "average American" standard. It's a hard issue, but one that comes with a rational balance.

One question I have for professor Segall:

Is it that you think Roe was wrongly decided as a matter of constitutional privacy and construction? Or is it more a commentary about the practical impact - galvanizing movements, etc?

I second Prof. Dorf on his disagreement concerning Roe, but for a different reason. I think that Justice Goldberg was right in Griswold finding this to be a 9th Amendment issue (but that would require SCOTUS admitting the 9th Amendment actually covers something....)

Is there no possibility that we simply can't agree here? When the dichotomy is between those that think abortion is the equivalent to murder and those that think it is not -- you can't compromise. Why isn't that a legitimate option?

So when you say: "It is an all or nothing, zero-sum game, with little respect paid to the other side’s position", I question how much respect should be paid to the other side. Zero sum games can't always afford respect for another position if it's diametrically opposed to your own. Of course, one should always respect the person HOLDING that position, but that's different than respect for the position itself.

No one can show you the soul and say - 'a ha! Here is where the life began'. So it becomes a battle of votes. Can I muster more support to secure than you can muster to ban?

This is where the situation currently is.

"...our country does not have a blanket ban on the taking of human life."

Comparisons to self-defense, war, etc... are eventually seen an unavailing in terms of common ground for the same reason that murder and killing isn't a complete overlap on a venn diagram.

Comparisons to the marriage debate are also problematic. Many people, even if they don't identify as Libertarian, feel that government doesn't need to intrude on every area of life -- especially if it doesn't affect them.

Here, if you feel that abortion is the taking of a human life, there is no amount of "control" that would override such an important moral wrong. Likewise, if you feel it's not equivalent, there is no logical reason one should object to what another person does with a group of cells in THEIR body. It would be absurd to have a group come out against removing an appendix or a breast on the off chance there may be cancer forming.

It's not about control of the self. And because that's the real issue, the rest of the argument kind of falls apart from a libertarian sense. If there's a different principle at play here, I'd love to know. I just don't see the same kind of compromise we see in the gay marriage debate, playing out here.

To the extent there's practical issue at play, it's your fifth point -- that we had back alley abortions in this Country and people are now so far removed from remembering them that we really don't know what a no legal abortion society will be like. This, to me is the strongest reason for keeping abortion legal. We know the result and it's worse.

From a purely legal perspective, it would be great if we could stop trying to prop up these laws on clearly ridiculous foundations. Judge Posner hit the nail on the head when he showed that colonoscopy rates of infection were far higher than abortion infection rates, yet the law only targeted the latter, while permitting the former to still be done in clinics.

The crowd trying to restrict abortions seem to sense that they can't go ahead and say we want to ban abortion, but know we can't -- so we'll just make it harder to get one, and instead embark on some kind of legal/mental gymnastics in order to reach that conclusion. An open and honest assessment of motivations is in order. If not from those advocating for these laws, then from Judges. And while I know Professor Segall doesn't think the Supreme Court is a Court, they are capable of doing that.

And "honest reckoning" goes in both directions.You say: "Second, just about everyone would prefer a world with far fewer abortions."

Why?

If abortion isn't murder, why should anyone care that there are "far fewer abortions"? I don't care how many breast mastectomies take place every year. Why should I care how many abortions there are.

Admitting that "millions of Americans believe there is a moral component" is good, but it's not enough. The real reason is because people tend not to analyze their actions and go with their gut instincts and it "feels" like it's wrong to those people. If so, say so -- if not, allow abortion up until the first breath and don't think twice about it. Either way, start to externalize the conversation and expose your thoughts to some logical analysis.

Only then can one truly see something like: "abortion is not just another medical procedure" and say --

It might reassure the last commenter somewhat that in Planned Parenthood v. Casey, which reaffirmed up to a point Roe v. Wade, the 9th Amendment was cited to show that the "liberty" protected by the Due Process Clause is not limited to those liberties expressly enumerated. This was in effect Goldberg's point too.

As to abortion not "merely" being another medical procedure, sure enough for many it is not. People, however, have strongly different views on what that means. For some, it is immoral to not abort in certain cases.

Various medical procedures have a moral component, the most blatant perhaps being those involving end of life care.

Anyway, as to the less abortion point, especially unless we make them much easier to get, abortion is not some painless act. Women rather not get pregnant in the first place. Better contraceptive choices would be useful on that front even if the mere act of abortions isn't seen as bad.

I was asked why I opposed Roe. The answer is that I believe in a strongly deferential model of judicial review across the board, I don't find Roe better or worse than say Bakke, Citizens United, Shelby County, or Sulluvan as a matter of constitutional interpretation. I think they are all wrong.

There is a difference between the statement, "we are losing the war" with which I agree and the statement that "we would lose an all out war" which I remain skeptical off.

I think the reasons that the pro-choice side is losing the political war is several. First, I think there has been too much faith in Roe and a sense among pro-choice supporters that they don't really need to win the political battle because the courts will strike those laws down. I've always felt this reliance is misplaced.

The second reason is that the pro-lifers have done a great job of boxing the pro-choice movement in by an incremental fiddling around the edges. The pro-life movement has been very effective in keeping a stream of constant skirmishing going on that has left the pro-choice movement on the defensive. It's death by 1000 cuts.

Finally, I think there has been a reduction in the pro-choice camp itself. Many people who otherwise might support Roe or pro-choice more strongly find that it gets in the way of other things they value more. Eric's comment about how Roe fits in with Citizen United is a perfect example.

egarber writes, "My experience is that there is a vast mainstream swath that does NOT see the matter in black and white terms. I have had many conversations (in the Atlanta burbs) where a father will say, "I am pro-life in a general way, but I'm uneasy with the idea that my daughter wouldn't have that choice."

Correct. Yet ultimately this position is a fantasy. It's a fantasy not because it is illogical but it is a fantasy because it mistakes the opposition. The pro-lifers might wear the face of moderation when it serves their purposes but they are not moderates in fact. Remember, there are plenty of people in the pro-life crowd who would love to do away with a women's right to /vote/. It's a fantasy to think that if the pro-choice crowd gives an inch the pro-lifers will stop with an inch. Nonsense, they want the whole mile. The center cannot hold.

That's the entire problem with Eric's thesis--he is saying there is no harm in making goo-goo eyes at the devil. Of course there is--it won't change the devil and it makes you look silly.

My original suggestion is that the question "when does human life begin" is not properly formulated and that asking it and suggesting that it is just a question that cannot have a right answer necessarily gives almost all of the game away.

That is why I ask, can you form an amoral argument with relation to abortion where answering that question is relevant? The answers you gave back are legitimate policy considerations, but they don't rely on answering the question of "when does human life begin?"

As I originally suggested, answering that question is actually very easy, but it just turns out that giving the easy scientific answer is not really answering the question being asked. Every strand of human DNA is human life, but no one would suggest that chemically destroying a human DNA molecule is morally problematic.

So, I will suggest, to even ask the question "when does human life begin?" and to have it mean what you intend it to mean is necessarily a religious question. It cannot be meaningfully framed outside of a religious context and have it be a difficult question - morally.

If you dump religious concerns, then I can suppose what you mean by the question is really "when does this living human creature start experiencing things that make us want to protect its interests?" That question most certainly has a scientific answer (even if its contours are not yet fully understood) and that answer will be right (or wrong).

So I do not agree that there is an important metaphysical debate to be had (except by those people who believe in magic) that is relevant to the issue of abortion. By insisting that this question is even relevant is to suggest that religious views are important and relevant questions to answer when considering policy. Ceding ground on that point - that is treating someone's belief in magic as relevant to policy discussion - is more damaging than any short lived obstruction successfully passed by some Deep South state.

There is a problem of public ignorance and lack of engagement. In this vacuum, partisans and ideologues fill the space, to pose as champions for the emotional and moral beliefs of the people. Granted, this is how representative democracy works - regardless what an enlightened Judge may think is logically permissable - but it is most pronounced on this kind of highly-charged issue.

Polls show a large majority of Americans supporting at least some restrictions, particularly on late-term abortion. Wendy Davis was offered as a heroic figure for the pro-choice side, fighting an abortion bill in the conservative state of Texas. I don't know how many knew that the bill only concerned late-term abortions and that the bill included exceptions for the life of the mother and for birth defects. We can argue about the sufficiency of those exceptions, particularly their wording, but that is a far cry from the superficial narrative that I think most people digested. One might fault conservatives for simplifying the debate also, but the point remains the same.

Thus it made headlines, when Davis said during her campaign that she would support restrictions on late-term abortions (like the one she filibustered) if exceptions were sufficiently worded.

We can compare this to gun control efforts. Polls generally show support for gun control, but the public isn't terribly engaged or knowledgable on the details. Thus New York pushed through a gun control law that wasn't a good match to the perceived public policy issue and was in part badly written. Prof. Dorf might be able to attest to the unpopularity of the law in his neck of the woods, at least based on yard signs.

Nationally, the support shown in polls didn't translate into action. Gun control efforts seem to have mostly fizzled for the time being.

The central role of the judiciary on this issue also cannot be ignored. Rather than moderate, it seems to exacerbate partisan forces that attempt to abide its contrived logic. This is not to say there are constitutional issues relating to abortion that should be ignored.

As Daniel Patrick Moynahan said, you can have your own opinion, but not your own facts. Your description of Taxas SB 5, filibustered by Wendy Davis, is woefully incorrect.

Text available at legiscan.com/TX/text/SB5/id/867548

(a) it banned abortions after 20 weeks, (still the second trimester) not "late term" abortions.

(b) it did not "only" address that topic, but also required physicians to have admitting privileges at a local hospital (within 30 miles), and require extremely expensive and unnecessary upgrades, requirements that only 5 of 42 clinics in the state met. The bill was opposed by the Texas Medical Association and the American College of Ovstetricians and Gynecologists as medically unnecessary.

The NYTimes characterized the bill as one of "the toughest restrictions on abortion in the country.

Your characterization certainly makes it seem like you aren't interested in having a meaningful discussion on this topic.

Let me clarify for you. When I wrote "the bill only concerned late-term abortions," my intention was to contrast with earlier term abortions (of which polls show less support for limiting). I understand how the imprecise wording could have misled you.

As far as your objection that these aren't only late-term abortions, Wikipedia (the source of all knowledge, hallowed by its name) reveals: "A late-term abortion often refers to an induced abortion procedure that occurs after the 20th week of gestation. The exact point when a pregnancy becomes late-term, however, is not clearly defined. Some sources define an abortion after 16 weeks as 'late'."

I agree that the other matters included in the bill should not be ignored in a reasoned debate, but I doubt very much that there was wide public awareness of those matters nor that most people informed of those matters would find them as objectionable as you find them. The obvious thesis of my response was that zeitgeist prevails over actual knowledge in the general public. Feel free to rebut that.

"The NYTimes characterized the bill as one of "the toughest restrictions on abortion in the country."

Well then! And I wager this is the kind of astute observation that captured people's attention, rather than the details of the bill.

Your characterization certainly makes it seem like you aren't interested in having a meaningful discussion on this topic.

I apologize for my mistake as to your intent, and I can see that you are correct, some people do define late-term abortions as such. I tend to define them, like the American Association of Pro-Life Obstetricians and Gynecologists, as being at the point of viability which is never as early as 20 weeks. I assumed it was the universal definition, and apologize for my mistake.

That said, I still stand by my statements that the filibuster was NOT about only late term abortions, nor was that the public understanding. Despite your doubt that the public was interested in almost 90% of abortion clinics closing in Texas, a brief google of HB2 or SB5 will show that the other restrictions appear prominentlyin The New York Times, one of the highest circulation papers in the country, but also in many, many other publications, including PBS, the Austin Chronicle, the LA Times, Huffington Post, Texas Tribune, and the Guardian. It was widely reported at the time, which jives with my recollection of the discussion.

Far from being excluded from the zeitgeist, the public discussion focused on the potential closure of most clinics in Texas.

I tend to define [late-term abortions], like the American Association of Pro-Life Obstetricians and Gynecologists, as being at the point of viability which is never as early as 20 weeks.

I couldn't find a statement to that effect on their website, but I'll take your word for it. Still, that is contrary to the apparent suggestion in your first response that late-term abortions do not fall in the second-trimester (babies have survived birth occuring in the second trimester). I am glad we have resolved this minor dispute, in the spirit of Prof Segall's post.

That said, I still stand by my statements that the filibuster was NOT about only late term abortions, nor was that the public understanding.

I hope I made clear that I agree. The public understanding on the pro-choice side, I wager, was that this was the most restrictive abortion law and had to be opposed. I do not think the details were especially important to the general public.

Despite your doubt that the public was interested in almost 90% of abortion clinics closing in Texas

This is the kind of political statement I am arguing that does sway public opinion, rather than a reasoned analysis of the law. That 80-90% of clinics may ultimately close should compel us to consider the need/desirability of those clinics and the reasons for their closing. I don't think there was this level of engagement among the general public.

a brief google of HB2 or SB5 will show that the other restrictions appear prominentlyin The New York Times, one of the highest circulation papers in the country, but also in many, many other publications, including PBS, the Austin Chronicle, the LA Times, Huffington Post, Texas Tribune, and the Guardian. It was widely reported at the time, which jives with my recollection of the discussion.

Absolutely. And you are clearly passionate on this issue and the Texas bill. I think it is folly to argue the general public is very knowledgable and intellectually engaged on the particulars of any bill.

Your argument seems to be that people, in general, know the particulars pretty well and are making a judgment not based on generalities or biases, but a careful weighing of many considerations. I think I have a healthy populist streak, but I wouldn't make this kind of claim.

I can attest to the fact that I debated people passionate on this subject who were unaware that there was any exceptions for life of the mother or for birth defects. They were even able to link to articles declaring that there were no such exceptions!

As I said, once we look at the exceptions, we can argue over their sufficiency, but that gets into weeds that most people generally don't tread.

Far from being excluded from the zeitgeist, the public discussion focused on the potential closure of most clinics in Texas.

My objection is that it is too much zeitgeist! Some percentage of people did read various claims about the bill. I am speaking to the matter of the great unwashed masses not huddled around the New York Times, hanging on every word and fitting the arguments and claims into a coherent intellectual framework.

Maybe we need not fret so much about the unwashed masses - that is why we have a representative democracy after all - but I am addressing one reason for polarization: most people aren't that seriously engaged or knowledgable. On this basis, ascribing an inability for reasoned discussion largely on ideological grounds is insufficent.

Another example was Bush's decision to dedicate millions of dollars to embryonic stem cell research. Widely mischaracterized as a ban (you can probably cite to all the sources you give above), it split the public along stale ideological lines based on political statements (like calling it a "ban").

As a person living in Texas, I'd like to respond to the discussion of the SB 5 Texas abortion law and the Wendy Davis filibuster.

I think it's correct that most Texans (on both sides) understood that this was not a blanket ban, but was an attempt, through a variety of means, to make abortions significantly more difficult to get in Texas. Even if that isn't "understanding the details" it's close enough for government work :-) . I don't think this lack of perfect understanding applies only to the pro-choice side.

Based on both the descriptions and what has happened since, the 80-90% figure of abortion clinic closures isn't far off, and wasn't disputed, just viewed as good or bad based on views about abortion. The reason for these closures is that the law makes it so that a clinic basically has to be in a large city in order to meet the requirements and cover its costs. Even then, some cities with multiple clinics have had some of them close. Mr. Simmons, are you really trying to imply that abortion clinics are not needed or safe for the mother unless they meet the requirements in the Texas law?

I will agree that the birth defect exception was not widely discussed. The exact wording is "The prohibitions and requirements under Sections 171.043, 171.044, and 171.045(b) do not apply to an abortion performed on an unborn child who has a profound and irremediable congenital anomaly." I'm guessing that there was some concern that a provider would wind up in court over whether or not "profound and irremediable" applies and as a result, in practice, providers would choose to never perform an abortion past 20 weeks. That kind of subtlety does tend to get watered down in the mainstream press, and is even often missed by many activists.

Another point that is largely undisputed (outside of the official record) is that the laws about clinic requirements are all about closing clinics, not keeping mothers safe. Similarly, the rules about medical abortions are about making abortions more difficult to get, not making them safer. Considering that this is messing around with medical care, I have a pretty big problem with the legislature dictating methods of treatment that don't match medical best-practice for political reasons. This is true for dentistry as much as it's true for abortion. Either you can make abortion illegal or you can't, but this should be debated and tried on its own merits.

NOTE: The 20-week requirement is excluded in the above paragraph. The explanation for the 20-week requirement was essentially "because abortion hurts babies" so it was at least honest about its intentions.

I think your characterization is correct that people believed the law sought to make abortions more difficult* to get in Texas. And based on this bird's eye view, people split along lines of whether this was good or bad. And that is my response to why it is difficult to discuss abortion! "Restricting abortion is bad," says one side (without knowing the details, perhaps getting some facts wrong); "Restricting abortion is good," says the other (similarly ignoring the details or getting them wrong).

Debating the morality of abortion is essentially fruitless, but I think it possible to debate and find agreement on some legal matters concerning abortion. But we can only do that if we engage on the details, rather than sticking to biases relating to whether restricting abortion is generally good or bad.

*Above, I did omit your adjective "significantly." We've seen the same ideological split on less restrictive bills, so it seems to me that significance of a law, in the absence of knowing and engaging on the details, doesn't really change much.

"Mr. Simmons, are you really trying to imply that abortion clinics are not needed or safe for the mother unless they meet the requirements in the Texas law?"

Some of the regulations plausibly make the clinics safer. Whether the clinics are safe enough for government work ;) is a reasonable supposition based on my own understanding. Yet it's beside the point if we are talking about the bulk of America who doesn't know or care enough.

I agree that the birth defect provision appears problematic. Knowing that this provision exists and what it means goes to having a conversation on abortion, rather than ignorantly declaring restrictions to be good or bad in the abstract.

The law unquestionably sought to make abortions harder to get. According to polls there is some consensus that abortion should be harder to get. Per Gallup, a large majority support waiting periods, parental consent, restrictions/bans after the first trimester, notifications to husbands, and a number of other hair curling ideas.

If we have an informed conversation, maybe support for the kind of law passed in Texas goes up, or maybe the people expressing support for greater abortion restrictions don't think it's so good in practice. But again, to the question of "why we can't talk about abortion?" the answer is that we (the unwashed masses) are not talking - we're not informed and engaged.

As I said in my first post: In this vacuum, partisans and ideologues fill the space, to pose as champions for the emotional and moral beliefs of the people.

I think the stem cell issue gives a starker example of public ignorance being a problem to engaging in anything resembling rational debate.

I don't ascribe to the notion that morality should be purged from law making. Nor do I think this all boils down to whether abortion can be completely outlawed or not.

** I am intrigued by the topic of Profs. Dorf and Colb's book. I appreciate the moral and ethical view they espouse even if I don't accept it. If I considered killing animals for consumption to be murder, I don't see how I could be okay with others doing it. I would seek to curtail the practice at the very least. I would not defer to agricultural "best practice" when it came to the raising and slaughter of animals.